Tran v. Dave's Elec. Co., WD 71183.

CourtCourt of Appeal of Missouri (US)
Citation361 S.W.3d 417
Docket NumberNo. WD 71183.,WD 71183.
PartiesPhong TRAN, Appellant,Emily Tran, Plaintiff, v. DAVE'S ELECTRIC COMPANY INC., Respondent,Laura Hale, Defendant.
Decision Date15 November 2011

361 S.W.3d 417

Phong TRAN, Appellant,Emily Tran, Plaintiff,
DAVE'S ELECTRIC COMPANY INC., Respondent,Laura Hale, Defendant.

No. WD 71183.

Missouri Court of Appeals, Western District.

Nov. 15, 2011.

[361 S.W.3d 418]

Edward D. Robertson, Jr. and Mary D. Winter, Jefferson City, MO, and Brendan C. Buckley and James T. Thompson, Kansas City, MO, for appellant.

William J. Foland, Jr. and Cory L. Atkins, Kansas City, MO, for respondent.



Phong Tran, the plaintiff below, appeals the trial court's denial of his motion for judgment notwithstanding the verdict (“JNOV”) against defendant Dave's Electric Company (“the Company”), after a jury found for the Company on Tran's claim that the Company was vicariously liable for the negligence of its then-President. Because the undisputed facts establish as a matter of law that the Company's President was acting in the course and scope of her employment for the Company at the time of the automobile accident in which Tran was injured, we reverse and remand for entry of JNOV in Tran's favor.

Factual Background

Tran was driving on Missouri Highway 291 in Cass County on January 27, 2004, when Laura Hale crossed onto his side of the road and struck his vehicle. Tran was injured in the accident. He filed suit against both Ms. Hale and the Company. At the time, Ms. Hale was the President and sole Director of the Company. The other officer of the Company was Ms. Hale's then-husband, David Hale.1

At trial, it was undisputed that at the time of the accident Ms. Hale was driving into the office from her home to meet with an auditor from the Company's workers compensation insurance carrier. It was also undisputed that, but for the workers compensation audit appointment, Ms. Hale would normally have worked from home on that day due to the inclement weather. Finally, the undisputed evidence establishes that Ms. Hale was unable to reschedule or cancel the auditor appointment on the morning of January 27, 2004, that she was the only Company employee in a position to meet with the auditor, and that she made the trip into the office because it was important to the Company's interests that the auditor not be abandoned at the Company's office.

[361 S.W.3d 419]

The Company and Tran both moved for summary judgment on the vicarious liability issue prior to trial. Both the Company and Tran also moved for a directed verdict on the issue at the close of Tran's evidence at trial, and at the close of all of the evidence. The circuit court denied all of these motions. The court found that reasonable minds could differ as to whether Ms. Hale was acting within the course and scope of her employment at the time of the accident, and submitted the issue to the jury.

The jury returned a verdict finding Ms. Hale personally liable, and awarding Tran $1.4 million in compensatory damages for his injuries. The jury found in the Company's favor, however, on Tran's vicarious liability claim. Tran filed a timely JNOV motion, claiming that the trial court had erred in submitting the respondeat superior issue to the jury. The trial court denied Tran's JNOV motion. This appeal follows.

Standard of Review

“The standard of review for the denial of a judgment notwithstanding the verdict (JNOV) is essentially the same as review of the denial of a motion for directed verdict.” All Am. Painting, LLC v. Fin. Solutions and Assocs., Inc., 315 S.W.3d 719, 723 (Mo. banc 2010) (citation omitted). In other words, “[a]s to denials of motions for judgment notwithstanding the verdict based on a conclusion of law, our review is de novo. Horner v. FedEx Ground Package Sys. Inc., 258 S.W.3d 532, 535 (Mo.App. W.D.2008).

Parties bearing the burden of proof generally are not entitled to a directed verdict. However, the plaintiff is entitled to a directed verdict in the unusual situation where the defendant has admitted in its pleadings, by counsel, or through the defendant's individual testimony the basic facts of the plaintiff's case. In such instances, the plaintiff is entitled to a directed verdict because there is no question of fact remaining for the jury to decide.

All Am. Painting, 315 S.W.3d at 723 (emphasis added) (citing Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993)). For the reasons explained below, we conclude that this case, like All American Painting, presents the “unusual situation” in which a JNOV in favor of plaintiff Tran was justified.


Tran asserts a single Point Relied On, contending that the trial court erred in denying his JNOV motion on the issue of the Company's respondeat superior liability. Tran maintains that the material, undisputed facts are that Ms. Hale was required under her duty to the corporation to go into work for an unavoidable task on a day on which she would not normally have done so. Tran asserts that the only interpretation of these facts is that Ms. Hale was on a “special errand” for the Company, meaning that she was acting in the course and scope of her employment for the Company at the time of the accident, even though she was traveling from her home to the Company's office at the time.

“Generally, an employer is not liable for damages under the doctrine of respondeat superior for injuries caused by an employee's negligent operation of a vehicle which occurred while that employee is going to or coming from work.” Tuttle v. Muenks, 964 S.W.2d 514, 517 (Mo.App. W.D.1998) (citation omitted). The rationale for the “going and coming” rule appears to be that, in an everyday commute to and from work, the employee is fulfilling the employee's own personal purposes of preserving employment and earning compensation

[361 S.W.3d 420]

by being available for work; in addition, the nature and extent of an employee's commute, and the risks the employee faces during that commute, are dictated by the employee's personal decisions as to where to reside and how and when to travel, and are unrelated to any particular feature of the work they perform at the employer's direction.2

There are several exceptions to this “going and coming” rule, however. Tran relies on one such exception—the “special errand” doctrine.

The “special errand” rule states that when an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself. Thus, while the general rule is that accidents incurred while an employee is going to or coming from work are not compensable because they do not arise out of and in the course of employment, that rule is not applicable where the employee during that period performs a special task, service or errand in connection with his or her employment. Such circumstance might be better characterized as causing a trip made in performing such a special task to be a part of the employment.

Custer v. Hartford Ins. Co., 174 S.W.3d 602, 614 (Mo.App. W.D.2005) (en banc) (citations and internal quotation marks omitted).3

Tran argues on appeal that “the special inconvenience ... of making [the journey] in the particular circumstances” justifies invocation of the “special errand” doctrine in this case. Prior Missouri cases addressing the “special errand” exception provide guiding principles. Thus, in Custer, an employee was injured on his drive home after participating in a golf tournament at the direction (if not the order) of his employer. 174 S.W.3d at 607, 614. Because

[361 S.W.3d 421]

of the inconvenience of making an irregular trip solely for the sake of his employer, the trouble and time due to the distance of the golf course from the employee's home, and the hazard presented by the drive home “on a dark, rainy night,” we found that the Labor and Industrial Commission had sufficient evidence to find that the employee was on a special errand at the time of his injury, and therefore entitled to workers compensation benefits. Id. at 614.

In contrast, we affirmed the Commission's finding that an employee was not on a “special errand” in Hilton v. Pizza Hut, 892 S.W.2d 625 (Mo.App. W.D.1994).4 In that case, the employer told the employee on a Monday that she had to produce her original Social Security card by the coming Friday to confirm her eligibility for employment, or she would be terminated. Id. at 634. In response, the plaintiff drove in the middle of the night to another town in order to retrieve her card, and was injured in an accident en route. Id. However, while the plaintiff was undeniably travelling to retrieve the card in order to satisfy her supervisor's demand, we nonetheless found that she was not on a special errand because she had “made a personal choice to drive that evening when there were other options available.” Id. We explained that, while the employer had given the employee an unequivocal directive, the employee retained the flexibility as to how, and when, to comply, including by taking the trip at another time, asking someone else to look for and mail her the card, or ordering a new card; the employee did not have to travel in the middle of the night in order to accomplish the employer's objective. Id. We stressed that “[t]here must be continuity of cause combined with continuity in time and space” between the employment and the injury in order for the “special errand” exception to apply. Id.

Similarly, we...

To continue reading

Request your trial
3 cases
  • Schiavone v. Aveta
    • United States
    • Superior Court of Pennsylvania
    • March 20, 2012
    ...and scope of employment for purposes of third-party tort actions against that employee's employer. See, e.g., Tran v. Dave's Electric, 361 S.W.3d 417 (Mo.App. W.D.2011). 4. This Court is not bound by decisions of federal courts inferior to the United States Supreme Court, although we may lo......
  • Higgenbotham v. Pit Stop Bar & Grill, LLC, ED 105714
    • United States
    • Court of Appeal of Missouri (US)
    • March 6, 2018
    ...caused by an employee’s 548 S.W.3d 329operation of a motor vehicle while traveling to or from work.2 Tran v. Dave’s Elec. Co. Inc. , 361 S.W.3d 417, 419 (Mo. App. W.D. 2011). But Missouri courts have recognized several exceptions to this rule. Tuttle v. Muenks , 964 S.W.2d 514, 518 (Mo. App......
  • King-Willmann v. Webster Groves Sch. Dist., SC 92125.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 2012
    ...Amendment makes no pretense of protecting one level of government from another. By its clear language, Section 23 limits the class of [361 S.W.3d 417] persons who can bring suit to enforce the Hancock Amendment to “any taxpayer.” In so doing Section 23 recognizes that any apparent injury to......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT